9 things you should know about a potential Australian republic

Author: Dr Bede Harris
Publication Date: Tuesday, 23 Jan 2018

As the debate continues over whether Australia Day should be celebrated on January 26, this series on The Conversation looks at the politics of some unresolved issues swirling around Australia Day – namely, the republic and reconciliation. And just for good measure, we’ll check the health of Australian slang along the way.

Whether Australia should become a republic or remain a monarchy is a perennial topic of debate, particularly around the time of Australia Day. Prime Minister Malcolm Turnbull briefly floated the idea of a plebiscite on an Australian republic earlier this year.

Many would have questions about how such a change would affect our system of government. But the questions and answers below show there is nothing unique about Australia’s situation, and the issues that need to be addressed are not particularly difficult.

1. Who is Australia’s current head of state?

Possible answers to this question range from “no-one” to “the governor-general” to “the Queen”: it all depends on what you mean by “head of state”.

The term is not used in the Constitution, so there is no office of “head of state”. Section 61 of the Constitution vests executive power in the Queen, and says power is exercised “on her behalf” by the governor-general.

What is incontrovertible is that the Queen is undoubtedly the source of executive power, even though the governor-general exercises it. So, if there were no Queen, there would be no governor-general. The governor-general’s powers are therefore entirely derivative.

So, you can say the Queen is head of state, as long as by “head of state” you mean “the person who is the ultimate source of executive power”.

2. What benefit would there be in Australia becoming a republic?

Such a move would be purely symbolic in that it could be effected without any change to the way functions are distributed under the Constitution. The Queen and governor-general would be replaced by an Australian president.

It would mean that any Australian could aspire to be the person embodying the ultimate source of executive authority in Australia.

It would also signal to the world that we are wholly independent, both in appearance and in fact, because we would no longer have a foreigner as our monarch.

3. Would having a president change the functions of the office?

No. Whatever changes were necessary to substitute a president for the Queen and governor-general could be made without changing the powers of the office.

Many Commonwealth countries have done this over the past 50 years, and have become republics while retaining the system of parliamentary government in which day-to-day power is vested in a prime minister.

4. What method of selecting a president is most likely to be supported by a majority of voters?

Surveys show that most voters favour the popular election of a president.

In that sense, the 1999 referendum was doomed to fail – not because a majority of Australians wanted to maintain the link with the Crown (polls showed a clear majority in favour of a republic), but because the Howard government put to voters a model (selection of a president by parliament) that most republicans did not want.

5. Would an elected president be compatible with our parliamentary system of government?

Yes.

Both Ireland and Germany are parliamentary democracies that have an elected head of state who performs the same limited role as Australia’s governor-general. Because the way these presidents exercise their powers is determined entirely by the constitution, presidential candidates cannot make campaign promises.

Campaigning for president in these countries does not revolve around party politics or political platforms, but around who voters think would best personify the country and represent it on the world stage.

6. Is there a danger in having a popularly elected president?

Some argue that a popularly elected president might think they had a mandate equal to that of the government, and so disregard the conventions that govern the role currently discharged by the governor-general.

7. What are the conventions and how do they operate?

There is a difference between a legal rule and a convention. A legal rule is enforceable by the courts; a convention is not – it is a rule whose effectiveness relies purely on customary compliance.

Confusion arises from the fact that what the governor-general may do according to the law can be very different from what they can do according to convention. For example, Section 58 of the Constitution says the governor-general can decide whether to assent to legislation “according to his discretion”. In reality, convention dictates that the governor-general must always assent to bills passed by parliament.

Almost all the powers given to the governor-general by the Constitution are either expressly stated as being exercised on the advice of the government or are exercised on advice by convention.

However, the governor-general has four powers they exercise independently – that is, not on anyone’s advice. These are to: appoint a prime minister, dismiss a prime minister, dissolve parliament, and refuse to dissolve parliament.

The circumstances in which these powers should be exercised is governed by convention. Therein lies the problem that led to the 1975 constitutional crisis.

There was no doubt that, under Section 64 of the Constitution, the governor-general had the legal power to dismiss the prime minister. What was in dispute was whether, under convention, failure to get supply passed by the Senate justified the exercising of that power.

8. How would we prevent a president from acting contrary to the conventions?

A governor-general or a president could act contrary to the conventions. The obvious solution to either of them doing this is to codify the conventions – that is, clarify what they are and put them into the Constitution, so they become rules of law enforceable by the courts.

There is nothing new in this: codification has been effected by many Commonwealth countries.

Some have retained the link with the Crown and have codified the powers of a governor-general. Others have become parliamentary republics, with presidents with codified powers.

9. How should reform be conducted?

To ensure genuine majority support for change, there should be a compulsory plebiscite legislated for by parliament, followed by a referendum.

The plebiscite should have two questions:

The first should ask whether voters want Australia to become a republic.

The second should ask which of a list of methods of selecting a president voters would prefer, assuming the first question showed a majority in favour of a republic.

If a majority had favoured a republic, the ensuing referendum should ask voters to approve the model that obtained most votes in the plebiscite.

Many other parliamentary democracies have become republics over time. We should broaden our thinking to take their experiences into account.